Paul Antwann Harlan v. State ( 2015 )


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  •                                                                                       ACCEPTED
    06-14-00236-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    5/19/2015 10:48:31 AM
    DEBBIE AUTREY
    CLERK
    No. 06-14-00236-CR
    FILED IN
    6th COURT OF APPEALS
    IN THE COURT OF APPEALS       TEXARKANA, TEXAS
    FOR THE SIXTH DISTRICT OF TEXAS5/19/2015 10:48:31 AM
    AT TEXARKANA, TEXAS            DEBBIE AUTREY
    Clerk
    PAUL ANTWANN HARLAN,
    Appellant
    vs.
    THE STATE OF TEXAS,
    Appellee
    On appeal from Criminal District Court No. 4
    of Dallas County, Texas
    In Cause No. F13-56882-K
    APPELLANT’S BRIEF
    Counsel of Record:
    Lynn Richardson                                 Julie Woods
    Chief Public Defender                           Assistant Public Defender
    Dallas County, Texas                            State Bar No. 24046173
    Frank Crowley Courts Building
    133 N. Riverfront Blvd., LB-2
    Katherine A. Drew                               Dallas, Texas 75207-4399
    Chief, Appellate Division                       (214) 653-3550 (phone)
    Dallas County Public Defender’s Office          (214) 653-3539 (fax)
    Julie.Woods@dallascounty.org
    Attorneys for Appellant
    LIST OF PARTIES
    APPELLANT
    Paul Antwann Harlan
    APPELLEE
    The State of Texas
    DEFENSE COUNSEL AT TRIAL
    Brenda Vonjoe
    4144 N. Central Expressway, Suite 650
    Dallas, Texas 75204
    Nicole Hines-Glover
    3838 Oak Lawn Avenue, Suite 1000
    Dallas, Texas 75219
    STATE’S ATTORNEY AT TRIAL
    Hilary Wright and Chris Johnson
    Dallas County District Attorney’s Office
    Frank Crowley Courts Building
    133 N. Riverfront Blvd., LB-19
    Dallas, Texas 75207-4399
    APPELLANT’S ATTORNEY ON APPEAL
    Julie Woods
    Dallas County Public Defender’s Office
    Frank Crowley Courts Building
    133 N. Riverfront Blvd., LB-2
    Dallas, Texas 75207-4399
    STATE’S ATTORNEY ON APPEAL
    Susan Hawk (or her designated representative)
    Dallas County District Attorney’s Office
    Frank Crowley Courts Building
    133 N. Riverfront Blvd., LB-19
    Dallas, Texas 75207-4399
    ii
    TABLE OF CONTENTS
    LIST OF PARTIES ................................................................................................... ii
    INDEX OF AUTHORITIES.................................................................................... iv
    STATEMENT OF THE CASE ..................................................................................1
    ISSUES PRESENTED...............................................................................................1
    STATEMENT OF FACTS ........................................................................................2
    SUMMARY OF ARGUMENT ...............................................................................14
    ARGUMENT ...........................................................................................................15
    POINT OF ERROR 1, RESTATED ........................................................................15
    The evidence is legally insufficient to support Appellant’s
    conviction for aggravated robbery because the State
    failed to prove beyond a reasonable doubt that Appellant
    was the person who committed the charged offense.
    POINT OF ERROR 2, RESTATED ........................................................................28
    The trial court abused its discretion when it overruled
    Appellant’s objection to the police officer’s speculative
    testimony.
    POINT OF ERROR 3, RESTATED ........................................................................32
    The Court should reform the judgment because it
    incorrectly reflects a finding of true to the enhancement
    paragraph.
    POINT OF ERROR 4, RESTATED ........................................................................32
    The Court should reform the judgment to reflect the
    correct offense.
    PRAYER ..................................................................................................................34
    CERTIFICATE OF SERVICE ................................................................................35
    CERTIFICATE OF COMPLIANCE .......................................................................35
    iii
    INDEX OF AUTHORITIES
    Cases
    Asberry v. State,
    
    813 S.W.2d 526
    (Tex. App.—Dallas 1991, pet. ref’d) ........................................32
    Benitez v. State,
    No. 05-13-00199-CR, 2014 Tex. App. LEXIS 7651 (Tex. App.—Dallas July 15,
    2014, pet. ref’d) (not designated for publication) ......................................... 18, 25
    Bigley v. State,
    
    865 S.W.2d 26
    (Tex. Crim. App. 1993) ...............................................................32
    Brooks v. State,
    
    323 S.W.3d 893
    (Tex. Crim. App. 2010) (plurality op.) .....................................17
    Burden v. State,
    
    55 S.W.3d 608
    (Tex. Crim. App. 2001) ...............................................................29
    Clayton v. State,
    
    235 S.W.3d 772
    (Tex. Crim. App. 2007) .............................................................17
    Gardner v. State,
    
    306 S.W.3d 274
    (Tex. Crim. App. 2009) .............................................................18
    Hooper v. State,
    
    214 S.W.3d 9
    (Tex. Crim. App. 2007) .......................................................... 17, 25
    Jackson v. Virginia,
    
    443 U.S. 307
    (1979) .............................................................................................17
    Madrigal v. State,
    
    347 S.W.3d 809
    (Tex. App.—Corpus Christi 2011, pet. ref’d)...........................30
    Merritt v. State,
    
    368 S.W.3d 516
    (Tex. Crim. App. 2012) .............................................................18
    Miller v. State,
    
    667 S.W.2d 773
    (Tex. Crim. App. 1984) .............................................................18
    iv
    Miranda v. Arizona,
    
    384 U.S. 436
    (1966) ...............................................................................................8
    Solomon v. State,
    
    49 S.W.3d 356
    (Tex. Crim. App. 2001) ........................................................ 30, 
    31 Will. v
    . State,
    No. 05-12-01465-CR, 2014 Tex. App. LEXIS 8341 (Tex. App.—Dallas July 30,
    2014, pet. ref’d) (mem. op., not designated for publication) ...............................18
    Statutes
    TEX. PENAL CODE § 12.32 ........................................................................................33
    TEX. PENAL CODE § 29.03 ........................................................................................33
    TEX. R. EVID. 602 .....................................................................................................29
    Rules
    TEX. R. APP. P. 43.2(b) .............................................................................................32
    TEX. R. APP. P. 44.2(b) ............................................................................................31
    v
    TO THE HONORABLE COURT OF APPEALS:
    COMES NOW Appellant, Paul Antwann Harlan, and submits this brief on
    appeal from a conviction for aggravated robbery in Criminal District Court No. 4
    of Dallas County, Texas, the Honorable Dominique Collins, judge presiding.
    STATEMENT OF THE CASE
    A grand jury indicted Appellant for aggravated robbery with a deadly
    weapon. (CR: 10). Appellant pleaded not guilty to the charge and proceeded to jury
    trial. (RR3: 8; RR4: 13). The jury found Appellant guilty of the charged offense.
    (CR: 96; RR5: 88). Appellant pleaded true to one enhancement paragraph alleging
    a prior felony conviction. (CR: 10; RR6: 4). The jury assessed a sentence of 50
    years’ imprisonment and a $10,000 fine. (RR6: 14-15). The trial court overruled
    Appellant’s motion for new trial. (CR: 86). Appellant timely filed his notice of
    appeal. (CR: 88).
    ISSUES PRESENTED
    POINT OF ERROR 1
    The evidence is legally insufficient to support Appellant’s conviction for
    aggravated robbery because the State failed to prove beyond a reasonable doubt
    that Appellant was the person who committed the charged offense.
    POINT OF ERROR 2
    The trial court abused its discretion when it overruled Appellant’s objection to the
    police officer’s speculative testimony.
    1
    POINT OF ERROR 3
    The Court should reform the judgment because it incorrectly reflects a finding of
    true to the enhancement paragraph.
    POINT OF ERROR 4
    The Court should reform the judgment to reflect the correct offense.
    STATEMENT OF FACTS
    Around 7:45 p.m. on May 7, 2013, Anwarul Hoque and Maria Ochoa were
    working at Hilda’s Grocery, a convenience store located at 1016 Murdock Road in
    Dallas, Texas. (RR4: 18-19, 44). Two men walked into the store and quickly
    walked toward Ochoa, ordering her to get on the floor. (RR4: 45). Hoque, who was
    replenishing the store’s Dr. Pepper supply at the time, saw the two men walk into
    the store. (RR4: 24). Hoque observed one of the men carrying a gun. (RR4: 24).
    The man with the gun walked toward Hoque and grabbed him. (RR4: 24). Hoque
    saw Ochoa on the ground. (RR4: 24).
    One of the men, later identified as Latiki Bosman, wore a gray hooded
    sweatshirt and carried a red bag. (RR4: 32, 59, 151; State’s Ex. 11 Part 003—
    Camera #5; State’s Ex. 11 Part 003—Camera #7; State’s Ex. 11 Part 008—Camera
    2
    #14).1 The other suspect wore a dark hooded sweatshirt with “Brooklyn” on the
    front and a camouflage hat. (RR4: 32, 151; State’s Ex. 11 Part 003—Camera #5;
    State’s Ex. 11 Part 003—Camera #7; State’s Ex. 11 Part 005—Camera #10; State’s
    Ex. 11 Part 006—Camera #11; State’s Ex. 11 Part 008—Camera #14). The suspect
    wearing the dark hoodie was the person with the gun. (RR4: 32; State’s Ex. 11 Part
    005—Camera #10; State’s Ex. 11 Part 008—Camera #14).
    The two men, whose faces were mostly covered, told Hoque to open the
    register and give them the money. (RR4: 25). The man wearing the gray hoodie
    punched Hoque’s face. (RR4: 26, 28; State’s Ex. 23). Hoque testified that he was
    hurt from the punch and scared. (RR4: 36-37).
    Two security guards happened to stop at Hilda’s Grocery during the
    robbery.2 (RR4: 37). They apprehended Latiki. (RR4: 37-38, 48-49, 53). Richard
    Delatorre, a Dallas police officer, responded to a robbery-in-progress call for
    Hilda’s Grocery. (RR4: 51-53). When Delatorre arrived, he saw the two armed
    security guards in front of the store and the suspect in handcuffs at the store’s front
    door. (RR4: 53). Delatorre waited for another officer to arrive then took steps to
    1
    State’s Exhibit 11 is the video surveillance from Hilda’s Grocery. (RR4: 29-32). The exhibit in
    the record includes 11 separate videos, each depicting a different angle inside and outside
    Hilda’s Grocery. Each video is labeled by a “Part” number on the disc of the record, and each of
    these parts corresponds to a camera number, as identified in the recording itself.
    2
    The security guards were not employees of Hilda’s Grocery. (RR4: 58). They did not testify at
    trial.
    3
    ensure that no one else was inside the store. (RR4: 54). Delatorre observed damage
    to the store as a result of the robbery. (RR4: 54-57; State’s Ex. 13, 14, 16, 17, 18,
    19). He transported Latiki to jail. (RR4: 58-59).
    The evening of May 7, 2013, Juan Pina drove to his mother’s house at 7821
    Cup Circle in Dallas, Texas, where he lived. (RR4: 65-66). As he exited his ’97
    Honda Accord and walked towards the front door, he heard the metal gate at the
    side of the house shake. (RR4: 67-68). A man wearing a hoodie, sweatpants, and
    an army hat and carrying a dark backpack approached Pina and offered money for
    Pina to drive the man out of the area. (RR4: 69, 71, 74). When Pina refused, the
    man offered more money, pulled out a chrome handgun from the pocket of his
    hoodie, and pointed the gun at Pina’s face. (RR4: 69). The man said, “Give me
    your fucking keys.” (RR4: 70). Pina complied then walked to his house. (RR4: 70).
    The man with the gun walked backwards toward the car and entered the
    vehicle. (RR4: 70). Pina went inside his house and told his cousins, who were at
    the house that evening, what happened. (RR4: 71). One of his cousins went outside
    and told the man to get out of Pina’s car. (RR4: 71). When the man was not able to
    successfully start Pina’s car, he grabbed his backpack, slung it over his shoulder,
    and then ran away from the location. (RR4: 70-71). Pina’s other cousin chased the
    man down the street. (RR4: 71).
    4
    Pina saw a box of cigars underneath the back tire of the car and money and
    papers inside the car. (RR4: 71-73; State’s Ex. 45, 46). Pina testified that he did not
    leave these items inside or near his car. (RR4: 71-73).
    That same day, Armando Dominguez, a corporal with the Dallas Police
    Department’s K-9 unit, received a call for service regarding Hilda’s Grocery and a
    suspect who had fled on foot. (RR4: 106, 109-10). Dominguez took Pico, his
    trained police dog, to the location where the Lexus used in the aggravated robbery
    crashed through a fence and into a tree. (RR4: 86-87, 89, 111; State’s Ex. 32). This
    house was located on Irons Street, a street that dead-ends behind Pina’s house.
    (RR4: 86-87; State’s Ex. 30, 31, 32, 38).
    Pico was trained to pick up odors to help find and apprehend suspects. (RR4:
    107). Dominguez took Pico through the yard and to the crashed Lexus. (RR4: 111).
    Pico went through the Lexus then went down the side of the backyard to an open
    gate. (RR4: 111). Pico was on a “hard track” with his nose down to the ground.
    (RR4: 112). He walked to the street and made a right turn. (RR4: 113). When Pico
    came to a sewer ditch on Lawton Drive, he lay down near a pistol, hat, and shirt,
    signaling that he found an article. (RR4: 86-87, 113-14; State’s Ex. 57, 58, 59, 60,
    61, 62, 64). Dominguez notified the crime scene unit that Pico located these items.
    (RR4: 114-15). Dominguez did not touch these items and continued to search the
    area for the suspect. (RR4: 115). Pico did not locate the suspect. (RR4: 115, 116).
    5
    Scott Jay, a Dallas police officer, responded to the aggravated robbery call
    on May 7, 2013, to help search for the suspect who left the scene. (RR4: 120). He
    arrived at the location where the Lexus crashed. (RR4: 86-87, 121-22; State’s Ex.
    32). Jay and his partner established a perimeter for the area where they thought the
    suspect might be. (RR4: 120-21). They did not locate the suspect. (RR4: 121).
    Jeff Loeb, a Dallas police detective in the robbery unit, was on call the
    evening of May 7, 2013. (RR4: 133, 135). After receiving notification of the
    robbery at Hilda’s Grocery, he responded to the location and started working the
    case that night. (RR4: 136). He interrogated Latiki that night. (RR4: 136). Latiki
    did not give Loeb any information about the second suspect’s identity. (RR4: 136).
    Loeb conducted his follow-up investigation to determine the name of the second
    suspect. (RR4: 136).
    Two days later, on May 9, 2013, Jay responded to a service call for the same
    area to which he responded on May 7, 2013. (RR4: 122). A woman called 911 to
    report that an individual was in her yard looking for some items.3 (RR4: 121). The
    911 caller reported having seen this person on more than one occasion. (RR4: 121).
    She provided a physical description of the person she saw in her yard. (RR4: 122).
    She described the individual as a black male, six feet tall, and 160 pounds. (RR4:
    3
    This 911 caller did not testify at trial.
    6
    129). She also described a yellow Saturn she observed in conjunction with the
    suspicious person in her yard. (RR4: 122, 127).
    The physical description of the person in the 911 caller’s yard matched the
    description of the suspect who fled Hilda’s Grocery in the May 7, 2013, police
    report. (RR4: 124). The May 7, 2013, report described the suspect as a black male,
    six feet two inches tall, and 160 pounds. (RR4: 130). Using prior police reports
    with Latiki’s name and information he learned from speaking with witnesses, Jay
    determined that the individual in the 911 caller’s yard was Keonte Bosman.4 (RR4:
    124-25, 126). Jay put Keonte’s name in his May 9, 2013, report and sent it to the
    lead detective in this case. (RR4: 125).
    On May 9, 2013, Loeb received information from the officers who had
    responded to the suspicious person call at the location where the Lexus crashed.
    (RR4: 137). He learned from one of the responding officers that this suspicious
    person might be Keonte Bosman. (RR4: 137). Loeb also learned from his research
    that Latiki and Keonte had been arrested previously.5 (RR4: 137-38). Loeb
    obtained a warrant for Keonte’s arrest. (RR4: 137).
    4
    The record does not clearly identify whether Jay spoke with other witnesses besides the 911
    caller on May 9, 2013. The prosecutor, defense counsel, and Jay referred to “witnesses,”
    indicating more than one witness, but did not clarify whether there were actually multiple
    witnesses who observed the suspicious person on May 9, 2013. (RR4: 124, 125-26).
    5
    Loeb did not specify whether Latiki and Keonte had been arrested together previously or
    whether each had been arrested previously but on separate occasions. (RR4: 137).
    7
    Loeb also obtained a search warrant for the Lexus that the police had
    impounded. (RR4: 138). Inside the trunk of the car, Loeb found a wallet with
    Appellant’s social security card and birth certificate. (RR4: 138, 144-47; State’s
    Ex. 74, 77). He believed that this wallet identified Appellant as the potential
    suspect in the robbery of Hilda’s Grocery. (RR4: 138). Loeb also found a wallet
    that he believed belonged to Latiki. (RR4: 138, 145; State’s Ex. 73, 75). This
    wallet contained credit cards bearing the last name of Bosman, but none of the first
    names was Latiki. (RR4: 138, 145; State’s Ex. 78). This wallet does not appear to
    have any identification for Latiki. (RR4: 145; State’s Ex. 73, 75). Loeb also found
    two cell phones which he testified belonged to Latiki and Appellant, but for which
    Loeb had no evidence of ownership. (RR4: 145, 158; State’s Ex. 72). He did not
    obtain a warrant for the cell phones and did not testify about how he determined
    ownership of these cell phones. (RR4: 157).
    After having Keonte arrested and brought to police headquarters, Loeb read
    Keonte’s Miranda6 rights. (RR4: 138). Keonte agreed to speak with Loeb. (RR4:
    138). Keonte explained that he knew Appellant. (RR4: 139). Keonte provided a
    voluntary DNA sample. (RR4: 141). After talking with him, Loeb ruled out Keonte
    as the suspect with Latiki in the robbery of Hilda’s Grocery. (RR4: 138). Loeb
    decided that the suspect with Latiki was Appellant. (RR4: 14). Keonte and Latiki
    6
    Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    8
    are related to each other.7 (RR4: 131-32). There is no evidence in the record
    suggesting that Appellant is related to Keonte or Latiki.
    Loeb testified that, “based mostly on height,” he was comfortable that he
    knew Appellant was the suspect in this case. (RR4: 140). Loeb testified that
    Keonte is six feet one inch tall, Appellant is five feet six inches tall, and Latiki is
    five feet nine inches tall. (RR4: 140, 169). Loeb explained, “So based on me
    knowing the height of Latiki Bosman, it was clear to me that the second suspect,
    the one that had the gun in the video, did appear to be shorter than the other
    suspect.” (RR4: 140-41).
    After ruling out Keonte as a suspect and finding Appellant’s wallet in the
    trunk of the Lexus, Loeb obtained a warrant for Appellant’s arrest. (RR4: 147).
    Phillip Lawler, a senior corporal in the Dallas Police Department, arrested
    Appellant on June 18, 2013, without incident. (RR4: 170, 172-73). Loeb met with
    Appellant and collected a DNA sample pursuant to a warrant. (RR4: 147-48).
    Loeb sent the hat, shirt, and handgun collected by the police on May 7,
    2013, along with Keonte’s and Appellant’s DNA samples, to the Southwestern
    Institute of Forensic Sciences (“SWIFS”) for testing and analysis. (RR4: 149).
    7
    The evidence in the record suggests that Keonte and Latiki are brothers. (RR4: 128, 156-57;
    RR5: 84-85).
    9
    Joshua Cordes, the police officer who photographed and collected evidence from
    the crime scene, placed the hat and shirt together in the same box. (RR4: 159).
    Kylie Slaughter, a forensic biologist for SWIFS, received the hat, shirt, and
    pistol collected in this case. (RR4: 98, 100; RR5: 4, 6, 13; State’s Ex. 63, 65, 66,
    82). Her job is to determine who wore an item of clothing or touched an item.
    (RR5: 5). In this case, the police requested wearer and handler samples only. (RR5:
    6-7). The police did not request testing for body fluids on these three items. (RR5:
    7).
    Slaughter received the shirt and hat together in the same bag. (RR5: 9). She
    took two swabbings and a cutting from the shirt.8 (RR5: 7-8). The two swabbings
    were from the interior of the sleeves and the interior of the neckline because she
    thought these areas likely would have come into contact with the skin of the person
    who wore the shirt. (RR5: 7-8). She took a cutting from the shirt’s neckline. (RR5:
    7-8). Slaughter also took a swabbing of the entire sweatband inside the hat, a
    second swabbing of the entire brim of the hat, and a cutting from the hat’s
    sweatband. (RR5: 9). She placed the swabbings and cuttings into individual Ziploc
    bags which she then deposited into heat-sealed bags. (RR5: 10). She transferred
    8
    A swab is similar to a Q-tip. (RR5: 11). To collect a swabbing for testing purposes, Slaughter
    moistened a swab and ran the swab across the target areas of the items. (RR5: 11).
    10
    these bags to the freezer for the DNA analyst to retrieve for further analysis. (RR5:
    10).
    Slaughter also took one swab of the firearm. (RR5: 11). She swabbed the
    grip, the trigger, the trigger guard, the textured buttons and safety, and the areas of
    the slide. (RR5: 11-12). She placed this swabbing in a ziploc bag inside a heat-
    sealed envelope and placed the bag in the freezer. (RR5: 12).
    On two separate occasions, Angela Fitzwater, an employee with SWIFS,
    performed DNA testing on the swabbings and cuttings that Slaughter collected
    from the hat, shirt, and pistol. (RR5: 23-24). The results of Fitzwater’s first round
    of DNA testing culminated in her report dated October 7, 2013. (RR5: 29-30;
    State’s Ex. 80). She tested the swabbing of the gun, the cutting from the hat, and
    the cutting from the shirt. (RR5: 31). Fitzwater was able to develop a DNA profile
    for the swabbing of the shirt, hat, and pistol. (RR5: 26-27). She also received the
    buccal swabs Loeb obtained from Keonte and Appellant. (RR5: 27).
    Fitzwater determined that the DNA profile on the hat was a mixture of at
    least two people, but she was not able to determine the number of contributors.
    (RR5: 28; State’s Ex. 80). She also observed a third DNA profile, which she
    identified as “unknown male,” through the course of her testing of the items. (RR5:
    30, 32; State’s Ex. 80). Fitzwater excluded Appellant, Keonte, and the unknown
    male from the DNA profile on the hat. (RR5: 33; State’s Ex. 80).
    11
    Because Fitzwater found a low level of DNA on the gun, she was unable to
    determine the number of contributors. (RR5: 30; State’s Ex. 80). The DNA profile
    on the gun contained genetic markers that corresponded to Appellant’s DNA
    profile. (RR5: 31; State’s Ex. 80). Based on this information, Fitzwater included
    Appellant as a possible contributor on the gun. (RR5: 30-31). She excluded Keonte
    and the unknown male as contributors to the DNA profile on the gun. (RR5: 31).
    Fitzwater also tested the shirt and found a DNA profile for the unknown
    male. (RR5: 32; State’s Ex. 80). The DNA profile on the shirt did not match
    Appellant or Keonte. (RR5: 32; State’s Ex. 80). Fitzwater explained that the shirt
    cutting contained a high level of DNA. (RR5: 32).
    About six months later, Fitzwater received another request to perform DNA
    analysis on the two remaining hat samples and the two remaining shirt samples.
    (RR5: 33). Fitzwater included the results of this additional DNA testing in her
    August 4, 2014, report. (RR5: 37; State’s Ex. 81). Loeb requested this additional
    testing because the first testing of the items generated low results. (RR4: 166-67).
    Fitzwater explained that this was not a re-testing of the items she had previously
    tested. (RR5: 33). Rather, she tested the remaining samples she had not previously
    tested. (RR5: 33).
    Fitzwater tested three shirt samples. (State’s Ex. 81). Based on this second
    round of testing, Fitzwater concluded that one shirt sample contained a DNA
    12
    profile mixture of at least two people. (RR5: 35; State’s Ex. 81). She was able to
    distinguish a major and minor profile. (RR5: 35; State’s Ex. 81). She determined
    that the major contributor was the unknown male. (RR5: 35; State’s Ex. 81). She
    also determined that the DNA profile of the minor contributor did not match
    Appellant or Keonte. (State’s Ex. 81).
    In the remaining two shirt samples, Fitzwater observed the DNA profile of
    the unknown male. (State’s Ex. 81). This DNA profile on these shirt samples did
    not match Appellant or Keonte. (State’s Ex. 81).
    Fitzwater concluded that the hat contained a DNA profile mixture of at least
    two people, but could not determine a major and minor contributor. (RR5: 36;
    State’s Ex. 81). She included Appellant as a possible contributor. (RR5: 36-37;
    State’s Ex. 81). She excluded both Keonte and the unknown male from the hat
    samples. (RR5: 36-37; State’s Ex. 81).
    Fitzwater testified that she was able to create a probability of the likelihood
    that the DNA profile on the items came from one person or did not come from an
    unknown person. (RR5: 37-38). She concluded that one hat sample indicated that
    the probability Appellant was a possible contributor was 1 in 1,160. (RR5: 38;
    State’s Ex. 81). In the second hat sample, Fitzwater concluded that the probability
    Appellant was a possible contributor was 1 in 648. (RR5: 38; State’s Ex. 81). She
    also concluded that the probability that the unknown male was a contributor to the
    13
    DNA profile on the shirt samples was 1 in 204,000,000,000,000. (RR5: 39; State’s
    Ex. 81).
    SUMMARY OF ARGUMENT
    Issue 1:      The State failed to prove beyond a reasonable doubt the
    essential element of identity in this case. The weak circumstantial evidence in this
    case does not lead to a reasonable inference that Appellant was the person who
    committed aggravated robbery with Latiki. Because the State failed to prove
    beyond a reasonable doubt that Appellant was the person who committed the
    offense, this Court should reverse the conviction and enter a judgment of acquittal.
    Issue 2:      The trial court’s erroneous admission of speculative testimony
    in this case affected Appellant’s substantial rights. The officer’s testimony that
    Appellant placed his wallet in Latiki’s car before committing aggravated robbery
    together was not supported by any factual evidence. Rather than offering concrete
    facts, the officer speculated that Appellant was criminally connected to the charged
    offense because his wallet was in the trunk of the car parked at Hilda’s Grocery.
    This Court cannot be certain that the officer’s speculative testimony did not
    contribute to the conviction in this case.
    Issues 3 and 4:      The Court should reform the judgment to delete the
    finding of true to the enhancement paragraph and to include the correct offense
    14
    name in this case because the record contains the necessary information for this
    Court to do so.
    ARGUMENT
    POINT OF ERROR 1, RESTATED
    The evidence is legally insufficient to support Appellant’s conviction for
    aggravated robbery because the State failed to prove beyond a reasonable doubt
    that Appellant was the person who committed the charged offense.
    Facts
    Neither Hoque nor Ochoa could identify the two suspects in the robbery of
    Hilda’s Grocery on May 7, 2013. Hoque explained that he did not pay attention to
    the suspects’ clothes. (RR4: 25). He did not see their faces because they wore
    “masks.” (RR4: 25). He could not recall whether they wore shorts or pants, long-
    sleeved or short-sleeved shirts. (RR4: 25). He was too scared to pay attention to
    these details. (RR4: 25). He did not make an in-court identification of the person
    with Latiki. (RR4: 17-42).
    Ochoa recalled that the suspects “had sweaters on with caps, and their faces
    covered.” (RR4: 45). She did not make an in-court identification of the person with
    Latiki. (RR4: 43-50).
    Pina did not make an in-court identification of the person who attempted to
    carjack him the night of May 7, 2013. (RR4: 11, 65-79). During a photo lineup
    administered by Loeb a few days after the offense date, Pina chose Keonte as the
    15
    person who attempted to take his car. (RR4: 11, 79). Prior to trial, and at
    Appellant’s request, the court held a hearing outside the jury’s presence. (RR4: 5-
    12). During this hearing, Pina affirmatively stated that he could not tell whether the
    person who approached him the night of May 7, 2013, at his mother’s house was in
    the courtroom. (RR4: 11).
    When Loeb spoke with Latiki about the robbery, Latiki remained tight-
    lipped about his accomplice. (RR4: 136). Loeb suspected that Latiki would not
    give information about his accomplice because the accomplice was one of Latiki’s
    relatives. (RR4: 164).
    Although Loeb initially believed that Keonte Bosman was the second
    suspect with Latiki, he ruled out Keonte as a suspect. (RR4: 138). Loeb concluded
    that Appellant was the person who committed the robbery with Latiki. (RR4: 136).
    He testified that he came to this conclusion based on his personal assessment of the
    height of the person with Latiki, the fact that Appellant’s wallet and cell phone
    were inside Latiki’s Lexus, and the DNA testing results. (RR4: 136, 138, 140, 141;
    RR5: 50).
    Despite the fact that the DNA testing showed the presence of an unknown
    male’s DNA profile on the shirt, Loeb testified that he did not hesitate in his
    decision to focus on Appellant as the suspect. (RR5: 50). He explained that
    because he “was already looking at a male as [his] suspect…it just confirmed that
    16
    it was a male suspect’s DNA on a shirt.” (RR5: 50).
    Standard of Review
    Legal sufficiency of the evidence is measured by the standard enunciated by
    the United States Supreme Court in Jackson v. Virginia, i.e., “whether, after
    viewing the evidence in the light most favorable to the prosecution, any rational
    trier of fact could have found the essential elements of the crime beyond a
    reasonable doubt.” 
    443 U.S. 307
    , 319, n. 12 (1979). The Jackson standard is the
    only standard a reviewing court should apply to determine if the State proved each
    and every element of the offense beyond a reasonable doubt. Brooks v. State, 
    323 S.W.3d 893
    , 895 (Tex. Crim. App. 2010) (plurality op.). The reviewing court must
    defer to the fact finder’s credibility and weight determinations since the trier of fact
    is the sole judge of the credibility of a witness’s testimony. 
    Id. at 899.
    The
    reviewing court “determine[s] whether the necessary inferences are reasonable
    based upon the combined and cumulative force of all the evidence when viewed in
    the light most favorable to the verdict.” Hooper v. State, 
    214 S.W.3d 9
    , 16-17
    (Tex. Crim. App. 2007). A court’s review of the evidence includes all admitted
    evidence regardless of whether the admission of evidence was erroneous. Clayton
    v. State, 
    235 S.W.3d 772
    , 778 (Tex. Crim. App. 2007).
    17
    Applicable Law
    It is incumbent upon the State to prove beyond a reasonable doubt that the
    defendant is the person who committed the charged offense. Miller v. State, 
    667 S.W.2d 773
    , 775 (Tex. Crim. App. 1984); see also Williams v. State, No. 05-12-
    01465-CR, 2014 Tex. App. LEXIS 8341, at *8-9 (Tex. App.—Dallas July 30,
    2014, pet. ref’d) (mem. op., not designated for publication). The State must prove
    that the defendant was criminally connected to the offense. See Merritt v. State,
    
    368 S.W.3d 516
    , 525 (Tex. Crim. App. 2012). Identity may be shown by direct
    evidence, circumstantial evidence, or reasonable inferences from this evidence.
    Gardner v. State, 
    306 S.W.3d 274
    , 285 (Tex. Crim. App. 2009); see also Benitez v.
    State, No. 05-13-00199-CR, 2014 Tex. App. LEXIS 7651, at *8 (Tex. App.—
    Dallas July 15, 2014, pet. ref’d) (not designated for publication).
    Analysis
    The State failed to prove beyond a reasonable doubt that Appellant was the
    person who committed the charged offense with Latiki. Loeb’s personal visual
    assessment of the height of the second suspect, as depicted on the video
    surveillance, and the DNA results are not sufficient proof to establish that
    Appellant committed the charged offense. Furthermore, the presence of
    Appellant’s wallet inside Latiki’s car did not prove beyond a reasonable doubt that
    Appellant was the person with Latiki inside Hilda’s Grocery on May 7, 2013.
    18
    The Wallet.
    The only evidence potentially probative of Appellant’s involvement in the
    offense was that a wallet containing Appellant’s birth certificate and social security
    card was inside the trunk of the car driven prior to and after the robbery of Hilda’s
    Grocery. Indeed, Loeb only considered Appellant a suspect after he found
    Appellant’s wallet inside the Lexus. Yet this piece of evidence hardly proves that
    Appellant was the person who actually committed the offense with Latiki. There is
    no evidence that the wallet contained any picture identification matching
    Appellant’s physical description. There is no evidence that Appellant placed the
    wallet in the car. Nor is there evidence of how long the wallet had been inside the
    car. Furthermore, as plainly visible on the video surveillance, there is no evidence
    that Latiki and his accomplice placed any items in the trunk of the car before
    entering Hilda’s. Without any proof of when Appellant placed his wallet inside
    Latiki’s car, if Appellant did in fact place it there himself, the mere presence of the
    wallet in the car does not reasonably lead to an inference that Appellant committed
    aggravated robbery with Latiki.
    No rational juror could reasonably infer that Appellant committed the
    charged offense simply by virtue of his wallet being inside Latiki’s car. Without
    any other evidence establishing when and how the wallet ended up in Latiki’s car,
    19
    it is pure speculation that Appellant placed his wallet inside the car prior to
    committing robbery with Latiki.
    Additionally, there is no evidence as to who drove the Lexus from Hilda’s
    and crashed the car after the robbery. Indeed, according to Loeb’s recollection, the
    911 caller who reported the suspicious person in her yard two days after the
    robbery reported that the suspicious person said his brother had crashed the car.
    (RR4: 156). There is no evidence in the record that Appellant is Keonte’s brother.
    Keonte knew Appellant, but never indicated that they were related. This suspicious
    person matched Keonte’s physical description. If the suspicious person in the yard
    near the crash site was Keonte, as the evidence suggests, then someone other than
    Appellant crashed the Lexus. Yet even if the jury believed that Appellant drove the
    Lexus and crashed the car, despite the lack of evidence establishing such a
    conclusion, it would not be logical to infer that Appellant left his wallet with his
    identification inside the abandoned car.
    At most, the fact that a wallet containing documents with Appellant’s name
    was inside Latiki’s car simply establishes that someone placed the wallet inside the
    trunk at some point prior to the execution of the search warrant. There was no
    evidence that Appellant placed his wallet inside Latiki’s car and no evidence that
    the fact that Appellant’s wallet was inside this car meant that Appellant committed
    20
    robbery with Latiki. Furthermore, the record is completely devoid of any evidence
    that Appellant was at or near Hilda’s Grocery on May 7, 2013.
    DNA Results.
    Loeb testified that he believed Appellant was the suspect based on the DNA
    results. However, this testimony is not supported by the facts in the record. The
    results of the DNA testing were not complete until October 7, 2013, and August 4,
    2014. (RR5: 24, 34; State’s Ex. 80, 81). Loeb obtained an arrest warrant for
    Appellant on June 14, 2013. (CR: 11-14) Dallas police officer Phillip Lawler
    collected the warrant for Appellant’s arrest on June 18, 2013, and gathered
    intelligence about Appellant’s location. (RR4: 172-73). Based on the arraignment
    information in the record, Appellant was arrested on June 18, 2013, nearly four
    months before the first round of DNA testing results were available. (CR: 15).
    In any event, Loeb’s conclusion that the DNA analysis confirmed his
    determination that Appellant was the second suspect with Latiki is not supported
    by Fitzwater’s testimony about the DNA profiles on the hat, shirt, and gun.
    Fitzwater testified that the probability that Appellant’s DNA profile was on the hat
    was 1 in 1,160 and 1 in 648.9 This probability means that out of all the people in
    the City of Dallas, 1,084 and 1,941 people in the city, respective to each
    9
    The different probabilities on the hat reflect the different probabilities for each hat sample
    Fitzwater tested. (RR5: 38).
    21
    probability, would have that same DNA profile. (RR5: 38-39). If this significantly
    high number of people in the City of Dallas has the same DNA profile that was on
    the hat, then this is quite a large pool of people who potentially wore that hat. This
    evidence hardly establishes proof beyond a reasonable doubt that Appellant was
    the person who wore the hat.
    Furthermore, the likelihood that it was the unknown male’s DNA on the
    shirt was so high that a rational jury could reasonably infer that the unknown male
    had worn the shirt. Fitzwater explained that out of a pool of people equal to 29,000
    times the Earth’s population of 7,000,000,000 people, only one person would have
    that same DNA profile. This strong evidence logically indicates that someone other
    than Appellant wore this shirt.
    Fitzwater and Slaughter testified that they were not able to determine when
    DNA is deposited on an item. (RR5: 19, 43). Slaughter further explained that skin
    cells can last a long time on an item. (RR5: 19). Consequently, the fact that the hat
    and shirt contained a DNA profile matching Appellant’s DNA profile does not
    establish when the DNA was deposited. This evidence does not prove that
    Appellant wore these items on May 7, 2013, during the aggravated robbery of
    Hilda’s Grocery.
    Slaughter also explained that DNA can transfer from item to item. (RR5:
    18). Because the police collected the hat and shirt and placed them in the same bag
    22
    together, it is not illogical to consider the fact that DNA transferred between the
    items. It was only after the second round of testing on the hat that Appellant was
    included as a possible contributor.
    The DNA results do not comport with the State’s theory that Appellant wore
    the camouflage hat and used the shirt to cover his face during the robbery. Hoque
    and Ochoa testified that the second suspect’s face was covered. The video
    surveillance shows that the second suspect’s neck and face were covered by a shirt
    and that he wore a camouflage hat. Pico tracked the scent from the Lexus to the
    shirt in the ditch. Because the DNA testing established pretty conclusively that the
    unknown male wore the shirt, it is reasonable to infer that the unknown male was
    the person who covered his face with the shirt during the robbery then drove and
    crashed the Lexus after the robbery. Even if the jury did not believe that the
    unknown male was the accomplice, the DNA evidence in this case does not
    establish sufficient proof that Appellant was the person who covered his face with
    the shirt and wore the hat during the robbery.
    The DNA analysis of the gun indicated a low level of DNA. Fitzwater
    testified that low levels of DNA mean there are not enough genetic markers to
    make it uniquely identified to match it to an individual. (RR5: 28-29). When the
    level of DNA is low, the statistical probability that a particular person is a
    contributor is a lot less. (RR5: 28-29). Although Fitzwater included Appellant as a
    23
    possible contributor to the gun’s DNA profile, the low level of DNA on the gun
    renders the likelihood that Appellant’s DNA was actually on the gun significantly
    less. Even if Fitzwater had been able to conclusively establish that Appellant’s
    DNA was on the gun, her testing did not establish when the DNA was deposited.
    Height.
    The only other piece of evidence upon which Loeb relied to form his opinion
    that Appellant was the perpetrator of the robbery was Loeb’s assessment of the
    height of the person with Latiki. Loeb’s own testimony, however, established the
    difficulty in visually determining a person’s height without measuring. He
    explained that “height and weight is probably the most incorrectly stated”
    description of suspects. (RR5: 55). Loeb’s emphasis on height is hardly convincing
    evidence to convict Appellant as the second suspect in the robbery.
    Contrary to Loeb’s testimony that he could tell that the second suspect was
    shorter than Latiki, the video surveillance does not clearly depict that the person
    with Latiki was shorter than Latiki. The camera angle from behind the cash register
    and counter shows the two men crouching and hunched over to take items from
    underneath the counter. (State’s Ex. 11 Part 002—Camera #5; State’s Ex. 11 Part
    003—Camera #7). The camera views of the suspects inside Hilda’s Grocery started
    from a point higher than the suspects’ heads and angled down in the direction of
    the floor. (State’s Ex. 11 Part 002—Camera #5; State’s Ex. 11 Part 003—Camera
    24
    #7; State’s Ex. 11 Part 005—Camera #10; State’s Ex. 11 Part 008—Camera #14).
    Nothing in these video recordings reflects any concrete evidence that the second
    suspect was shorter than Latiki. Consequently, Loeb’s testimony that the second
    suspect is shorter than Latiki is not supported by the facts of the case. See 
    Hooper, 214 S.W.3d at 15
    (“[J]uries are not permitted to come to conclusions based on
    mere speculation or factually unsupported inferences or presumptions.”); Benitez,
    2014 Tex. App. LEXIS 7651 at *6 (recognizing that juries are not permitted to
    come to conclusions based on mere speculation or factually unsupported inferences
    or presumptions).
    The camera view of the suspects entering Hilda’s through the front door is
    equally inconclusive as to the second suspect’s height. Loeb testified that he was
    able to determine that the second suspect was shorter than Latiki based on his
    comparison of each suspect relative to a particular point on the lottery stand, as
    depicted in the video recording. Yet, the video surveillance does not support
    Loeb’s conclusion. As the suspects pass by the lottery stand, each head appears to
    pass by the same point on the lottery stand, indicating that they are at least similar
    in height, if not the same height.
    Jay testified that he recalled that the description of the second suspect in the
    May 7, 2013, report of the aggravated robbery was a black male, six feet two
    inches tall, and 160 pounds. (RR4: 130). Based on Loeb’s testimony, Appellant is
    25
    five feet six inches tall. (RR4: 140-41). Therefore, it is not a reasonable inference
    that Appellant was the suspect based on his height in comparison to the height as
    noted in the police report; Appellant is a significant eight inches shorter than the
    height of the suspect described in the May 7, 2013, police report.
    Furthermore, to infer that Appellant was the second suspect based primarily
    on height is not reasonable. If the evidence had shown, for example, that Appellant
    is seven feet tall, a relatively uncommon height, and the video surveillance
    depicted a man obviously more than a foot taller than Latiki, then perhaps Loeb’s
    height analysis would be more persuasive. However, this is not the case here.
    According to Loeb, Appellant is five feet six inches tall and Latiki is
    approximately five feet nine inches tall. When considering the fact that both
    suspects wore head coverings that obviously added inches to their overall height,
    this variance in height is not probative of the identity of the person who committed
    the offense with Latiki.
    The Remaining Evidence.
    None of the witnesses who came into contact with the second robbery
    suspect on May 7, 2013, made an in-court identification of Appellant as the
    suspect. During a photographic line-up administered a few days after the offense,
    Pina selected Keonte as the person who tried to carjack him and, according to the
    State, the person who committed the robbery of Hilda’s Grocery with Latiki.
    26
    Consequently, no witness identified Appellant as the person who committed the
    robbery or as the person who attempted to take Pina’s car.
    A majority of the remaining evidence points away from Appellant. Latiki’s
    refusal to confirm the name of his accomplice reasonably leads to the conclusion
    that Latiki committed the offense with one of his relatives, especially in light of the
    fact that Latiki had committed offenses with relatives in the past. (RR4: 155-56).
    The only evidence indicating Appellant even knew Latiki was Keonte’s
    statement to the police that he knew Appellant. There is no additional evidence in
    the record indicating whether Appellant actually knew Latiki or they spent time
    with each other.
    Although the gun had a serial number, the State did not present any evidence
    to show who owned the gun. (RR4: 96-98). The lack of ownership information
    coupled with the low levels of DNA on the gun did not establish sufficient
    evidence linking Appellant to the gun used during the robbery.
    Conclusion.
    The State failed to prove beyond a reasonable doubt that Appellant
    committed the charged offense with Latiki. The only evidence on which Loeb
    relied to conclude that Appellant committed the offense was Appellant’s height,
    wallet, and the DNA results. Loeb’s determination that Appellant committed the
    offense because he was shorter than Latiki is not supported by the facts in the
    27
    record. The fact that Appellant’s wallet was inside Latiki’s car did not establish
    that Appellant was with Latiki during the robbery; it merely placed Appellant’s
    wallet inside the car. Finally, the DNA evidence was not strong and did not
    conclusively prove that Appellant wore the hat or shirt during the robbery.
    Even when considering this evidence in the light most favorable to the jury’s
    verdict, the evidence remains insufficient to prove beyond a reasonable doubt that
    Appellant was the person who committed aggravated robbery. Because the State
    failed to prove identity in this case, the Court should reverse Appellant’s
    conviction and enter a judgment of acquittal.
    POINT OF ERROR 2, RESTATED
    The trial court abused its discretion when it overruled Appellant’s objection to
    the police officer’s speculative testimony.
    Facts
    Detective Loeb testified that he spoke with Keonte Bosman, about the
    alleged offense. (RR4: 137). Loeb believed that Keonte was the possible suspect
    who robbed Hilda’s Grocery with Latiki. (RR4: 137). Loeb obtained an arrest
    warrant for Keonte, and Keonte agreed to speak with Loeb. (RR4: 137-38). After
    speaking with Keonte, Loeb ruled him out as a suspect in this case. (RR4: 138).
    The prosecutor and Loeb then engaged in the following dialogue:
    Q. [by the prosecutor] Okay. Was [Keonte] able to
    point you in a different direction?
    28
    A.     Yeah. I had obtained a search warrant prior to
    interviewing him, of the vehicle that was used, and when
    I had searched the vehicle, I did find a wallet that
    belonged to apparently, Paul Harlan. His wallet was in
    the trunk of the vehicle. There was a Social Security card
    and a birth certificate, I believe, that was in there that
    identified him as a potential suspect. There was another
    wallet in the same trunk that belonged to Latiki Bosman,
    so I had surmised that most likely the suspects had placed
    their wallets in the trunk of the vehicle prior to
    committing the robbery.
    (RR4: 138). Appellant objected to this testimony as speculation. (RR4: 138-39).
    The prosecutor stated, “If I can respond, Your Honor, it goes with regard to his
    investigation of this case.” (RR4: 139). The court ruled, “All right. Overruled.”
    (RR4: 139).
    Standard of Review
    A trial court’s ruling regarding the admission or exclusion of evidence is
    reviewed under an abuse of discretion standard. Burden v. State, 
    55 S.W.3d 608
    ,
    615 (Tex. Crim. App. 2001). Appellant recognizes that the trial court’s ruling will
    not usually be disturbed on appeal if it is within the zone of reasonable
    disagreement. 
    Id. Applicable Law
    Rule 602 of the Texas Rules of Evidence prohibits a witness from testifying
    about matters without sufficient evidence to support a finding that the witness has
    personal knowledge of the matter. TEX. R. EVID. 602. Testimony that is based on
    29
    speculation and conjecture lacks probative value and is irrelevant. Madrigal v.
    State, 
    347 S.W.3d 809
    , 813 (Tex. App.—Corpus Christi 2011, pet. ref’d).
    Analysis
    In Appellant’s case, Loeb’s testimony that Appellant had placed his wallet in
    the trunk of Latiki’s car prior to robbing Hilda’s Grocery was purely speculative.
    Loeb’s own testimony affirmatively established that he “surmised” that Appellant
    placed his wallet in the car prior to committing the robbery. However, he
    articulated no other facts that would reasonably support this conclusion. Loeb did
    not know when the wallet was placed in Latiki’s car. He had no personal
    knowledge about who placed Appellant’s wallet in Latiki’s car. He had no
    information about whether Appellant was actually involved in the robbery at all.
    The State’s response that this was part of Loeb’s investigation did not
    convert his speculative testimony into admissible testimony. The sole purpose of
    the testimony was to establish the detective’s conclusion that Appellant committed
    the robbery with Latiki because he placed his wallet in Latiki’s car prior to the
    robbery.
    Harm Analysis
    The erroneous admission of evidence is nonconstitutional error. Solomon v.
    State, 
    49 S.W.3d 356
    , 365 (Tex. Crim. App. 2001). Appellant recognizes that an
    appellate court need not reverse a judgment of conviction or punishment for error
    30
    that does not affect substantial rights. See TEX. R. APP. P. 44.2(b). An error does
    not affect substantial rights if the appellate court, after reviewing the record as a
    whole, has fair assurance that the error did not influence the jury or had but a slight
    effect. 
    Solomon, 49 S.W.3d at 365
    .
    Because identity was the critical issue in this case 
    (see supra
    Point of Error
    1), Loeb’s speculative testimony unquestionably affected Appellant’s substantial
    rights. The only connection between Appellant and the robbery was that
    Appellant’s wallet was in Latiki’s car which had been in Hilda’s parking lot at the
    time of the robbery. The record contains no other facts connecting Appellant to
    Hilda’s Grocery. Loeb’s statement that Appellant placed his wallet in Latiki’s car
    prior to committing robbery was a speculative conclusion. Without Loeb’s
    speculative testimony, the jury could not have reasonably inferred that Appellant
    placed his wallet in Latiki’s car then committed robbery with Latiki that night.
    This is particularly true since Loeb testified that he initially believed Keonte was
    the person who committed robbery with Latiki that night. This Court cannot be
    certain that Loeb’s speculative testimony had only a slight effect on the jury. This
    Court should reverse the conviction and remand for a new trial.
    31
    POINT OF ERROR 3, RESTATED
    The Court should reform the judgment because it incorrectly reflects a finding of
    true to the enhancement paragraph.
    POINT OF ERROR 4, RESTATED
    The Court should reform the judgment to reflect the correct offense.
    (Jointly Argued)
    This Court should exercise its authority to correct the judgment in this case.
    This Court has the authority to amend the judgment to “speak the truth” when it
    has the necessary data and information to do so. TEX. R. APP. P. 43.2(b); Bigley v.
    State, 
    865 S.W.2d 26
    , 27-28 (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529-30 (Tex. App.—Dallas 1991, pet. ref’d). The record provides the
    necessary information and data for this Court to correct the inaccuracies in the
    judgment in this cause.
    Finding on Enhancement Paragraph
    Appellant pleaded true to the enhancement paragraph.10 (RR6: 4). The
    judgment in this case reflects that the jury found the enhancement paragraph true.
    (CR: 82). However, the record in this cause does not include the jury charge on
    10
    The record does not include the transcription of the enhancement paragraph the judge read to
    the jury. (RR6: 4).
    32
    punishment or the verdict form on punishment.11 When the judge read the jury’s
    verdict form, her statement did not include any reference to the enhancement
    paragraph. (RR6: 14). Nor did the trial court’s pronouncement of sentence contain
    any reference to the finding on the enhancement paragraph. (RR6: 15). Nor does
    the trial court’s docket sheet make any reference to the finding on the enhancement
    paragraph. (CR: 6-9). Consequently, the judgment’s recitation that the jury found
    the enhancement paragraph true is not supported by the record.
    Without a finding of true to the enhancement paragraph, the proper range of
    punishment in this case is 5 to 99 years’ or life imprisonment.12 TEX. PENAL CODE
    § 29.03 (providing that aggravated robbery is a first degree felony); § 12.32
    (providing that the punishment range for a first degree felony is 5 to 99 years or
    life imprisonment). This Court should remand this cause for a new punishment
    hearing.
    11
    The undersigned attorney contacted the District Clerk’s Office in an effort to supplement the
    clerk’s record with the jury charge and verdict form on punishment. The clerk stated that a jury
    charge on punishment not signed by the judge as well as a blank verdict form on punishment was
    in the court file of this case. The clerk also stated that her version of the online database of the
    scanned court documents in this case contains a notation that the clerk asked the judge twice for
    the punishment charge and verdict form, but did not receive either from the judge.
    12
    In the absence of the verdict form and punishment jury charge, it is not clear from the record
    what punishment range the trial court instructed the jury to consider in this case.
    33
    Offense Name
    The judgment reflects that the jury convicted Appellant for “Aggravated
    Robbery with a Deadly Weapon 2nd.” (CR: 82). The inclusion of “2nd” implies that
    this was Appellant’s second conviction for aggravated robbery. However, there is
    no evidence in the record that this case was Appellant’s second aggravated robbery
    conviction.
    The enhancement paragraph in the indictment alleged a prior conviction for
    felony drug possession. (CR: 10). The State’s notice of extraneous offenses does
    not include any other aggravated robbery case. (CR: 66). When the State offered,
    and the Court admitted, certified copies of Appellant’s prior convictions and
    Appellant’s stipulation to these exhibits, none of these documents reflected an
    aggravated robbery conviction. (RR6: 4-5; State’s Ex. 83, 84, 85, 86, 87, 88, 89,
    90, 91, 92, 93, 94, 95, 96, 97, 98, 99). Consequently, the inclusion of “2nd” in the
    name of the offense is erroneous, and this Court should delete that notation from
    the judgment.
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
    Court reverse the conviction and enter a judgment of acquittal. In the alternative,
    Appellant prays that this Court reverse and remand for a new trial. In the further
    34
    alternative, Appellant prays that this Court modify the judgment to correct the
    inaccuracies therein.
    Respectfully submitted,
    /s/ Julie Woods
    Lynn Richardson                                  Julie Woods
    Chief Public Defender                            Assistant Public Defender
    Dallas County, Texas                             State Bar No. 24046173
    Frank Crowley Courts Building
    133 N. Riverfront Blvd., LB-2
    Katherine A. Drew                                Dallas, Texas 75207-4399
    Chief, Appellate Division                        (214) 653-3550 (phone)
    Dallas County Public Defender’s Office           (214) 653-3539 (fax)
    CERTIFICATE OF SERVICE
    I hereby certify that a true copy of the foregoing brief was served on the
    Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.
    Riverfront Blvd., 10th Floor, Dallas, Texas 75207, by eServe on May 19, 2015.
    /s/ Julie Woods
    Julie Woods
    CERTIFICATE OF COMPLIANCE
    I certify that the word count in this document, which was prepared in
    Microsoft Word 2010, is 8,796.
    /s/ Julie Woods
    Julie Woods
    35